Anti-Sex Worker Bigotry Makes Its Way Into Rape Trial

Rape shield laws exist in the United States to prevent a defense attorney from questioning an alleged rape victim about her (or his) previous sexual history. And they exist for a damn good reason — because a sexual assault victim’s sexual history has absolutely nothing to do with whether or not she was actually raped. The only reason, in fact, that an alleged victim’s sexual history would be “useful” to the defense in a rape trial is the hope that a jury’s prejudices about a woman’s previous sexual history will cause them to declare her unrapeable.

And so, exceptions to rape shield laws are very rarely made. And you can bet than when an exception is made, it’s very regularly for a bigoted reason. Suddenly, an alleged victim’s sexual history is deemed relevant after all, because this victim is black, a gay man, a drug addict, a transgender person, a person with a disability, an immigrant, etc. … (and/) or a sex worker. The last one is what a defense team in Philadelphia is counting on in their plea for a court to ignore the rape shield law.

Lawyers defending a Philadelphia man accused of carjacking a couple in the city, then murdering the man in Bensalem and raping the woman, have asked a Bucks County judge to allow them to reveal to the jury that the alleged rape victim was a prostitute.

Omar Shariff Cash, 29, will stand trial in November for the slaying of Edgar Rosas-Gutierrez, 32, and the rape of a 41-year-old woman, whose name is being withheld.

Prosecutors have called Cash a “cold-blooded killer” and are seeking the death penalty.

Cash denies the charges. During a pretrial hearing in Doylestown Thursday, Cash’s public defenders asked county Judge Theodore Fritsch permission to tell the jury about the victim’s prior sexual conduct and reputation.

The attorneys said the woman told police she’d had sex with two other men in the hours before Cash allegedly raped her.

Cash’s lawyers said the Rosas-Gutierrez, whom the woman previously identified as her boyfriend, actually was her driver who had taken her to appointments with customers before the alleged crime.

Although evidence of a victim’s prior sexual activity usually is not admitted in court under the Pennsylvania rape shield law, public defender Suzette Adler argued the victim’s sexual activities on the day of the alleged rape are relevant, since they could explain some of her injuries.

There is so much to cover here, it’s hard to know when to begin. Let us start by saying that while rape does not always leave injuries behind by any stretch of the imagination, consensual sex does even less frequently.

But let us examine this defense further. Cash, of course, is claiming that he is innocent on all charges. If he really expected a jury to believe this, then the question would be not whether or not the woman was actually raped, but whether she was raped by him. And so, to take the defense at face value, it would seem they’re arguing that yes, a man is dead — and Cash didn’t do it — but also that the woman who was with him is lying about being raped because, well … I’m guessing because lying is just what women do. Especially women who allegedly have sex for money.

That quite clearly makes no sense whatsoever, either as a scenario or a defense. To argue both that Cash is innocent, but also that if he did it, it really wasn’t that bad, is talking out both sides of your mouth and pretty much akin to telling a jury that yeah, they probably should think that he did it.

What makes a whole lot more sense to me is that Cash likely doesn’t have a real defense or expect anyone to buy that he’s innocent, but is also trying to mitigate his chances of receiving the death penalty (which, for the record, I think ought to be abolished) by convincing the jury that his crime wasn’t heinous enough to deserve it. And what better way to do that than to convince them that the woman he raped was the kind of woman they’re likely to see as worthless and as deserving of no sexual autonomy? And to further convince them that the man he murdered was some sort of pimp?

If it’s true, if the woman is actually a sex worker, the point is to play off of that stigma, to paint her as unrapeable. If she’s not actually a sex worker, they’re trying to attach that stigma to her anyway, just because they know from experience that it works.

And it is proven from experience that it works. It’s hardly shocking to me that this trial is taking place in Philadelphia, not because Philadelphia is an awful, terrible place, but because precedent has been set there. Philadelphia is home to the notorious Judge Deni, a judge who determined that an alleged gang rape victim could not charge her attackers with rape because of her job as a prostitute, and instead felt that the rape was a “theft of services.” It’s unsurprising that they’re at least giving it a shot. And yes, I do think that those, such as Judge Deni, who have given legitimacy to the myth of sex workers as unrapeable, and to propagating the myth as a valid defense tactic, hold some of the responsibility here.

Here’s to hoping that for once justice and fairness trumps misogyny, and the judge dismisses the motion. This woman has been through far more than enough already.

But he might claim that he had consensual sex with the woman earlier in the day (in her role as a prostitute) which explains his DNA on her body- and perhaps even in the vehicle-, but had nothing to do with the later rape/murder.

Which is not to say of course that this should trump the rape shield law, but it would be a ‘good’ defense to explain away DNA evidence.

That quite clearly makes no sense whatsoever, either as a scenario or a defense. To argue both that Cash is innocent, but also that if he did it, it really wasn’t that bad, is talking out both sides of your mouth and pretty much akin to telling a jury that yeah, they probably should think that he did it.

It doesn’t make much logical sense, but arguing in the alternative is par for the course in legal cases. “I didn’t do it, but if I did, it was justifiable/minimizable/subject to mitigation,” appears in tons of criminal cases.

The problem with exceptions to the rape shield law is that they frequently just serve to open the floodgates on all the things the shield is supposed to prevent. Same day sexual activity, especially if there’s more than one partner allows the defense to imply that the woman is a slut.

(Also, this case is happening outside of Philadelphia. Doylestown is white commuter suburbia, not the city.)

“But he might claim that he had consensual sex with the woman earlier in the day (in her role as a prostitute) which explains his DNA on her body- and perhaps even in the vehicle-, but had nothing to do with the later rape/murder.”

You wouldn’t need to include the fact that he paid her for sex to make that defense, though. “My DNA was found wherever the hell it was found because we had a consensual sexual encounter earlier that day.” does not rely on “I have this ATM withdrawal as corroborating evidence, because I used the money to pay her.” to work unless they’re actually trying to enter a literal receipt for unprotected sex into evidence.

Though I do wonder what the defense will field as an explanation for why the driver was unmurderable.

“My DNA was found wherever the hell it was found because we had a consensual sexual encounter earlier that day.” does not rely on “I have this ATM withdrawal as corroborating evidence, because I used the money to pay her.”

No, but they probably think whore-shaming her will make it more believable. I’d like to think they were wrong.

From what I’ve read about this case it sounds like the defense is hoping to separate all the charges into different trials so that the jury in the rape trial won’t be allowed to know about the carjacking and murder. If the context of this sexual assault is removed then defense claims which clearly have no merit may seem plausible to a jury.

Meta

Copyright Information

Posts on this website are copyright Cara Kulwicki, all rights reserved. That means that you should not reprint them in full without permission. (Excerpts with a link back are, of course, fair use.) If you would like to cross-post something, please email me to discuss it.